Monday, November 28, 2016

This is an excerpt from an op-ed originally published in the Sacramento Bee.
Beneath the headlines of renegotiating NAFTA and torpedoing the Trans-Pacific Partnership, President-elect Donald Trump has often spoken about improving trade law enforcement, especially against China. On the campaign trail, he beat that drum in pretty much the same rhythm as Hillary Clinton.

While Clinton specifically proposed a new trade “prosecutor” and to triple the enforcement staff at office of the U.S. Trade Representative, the Trump campaign promised to use “every lawful presidential power to remedy trade disputes if China does not stop its illegal activities” and to bring new trade law cases in this country and at the World Trade Organization.

Trump is no stranger to litigation, but how can he and his administration execute on this promise?

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.

This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.

The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.

The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.

Tuesday, November 15, 2016

The election of Donald Trump, who achieved his victory through the arcane and antiquated Electoral College, but appears to have lost the popular vote, is but one example of the undemocratic character of our Constitution. In truth, the Constitution was designed to operate as an anti-democratic check on We the People. The framers saw democracy as a form of mob rule. In fact, one of the chief reasons they met in Philadelphia in 1787 was to curb the democratic excesses of state legislatures.

Let’s begin with Congress, which is composed of two legislative bodies, the Senate and the House of Representatives. Although the people elect the membership of both Houses, neither House is truly representative of the people and both are far from democratic.

The Senate is notoriously and purposefully undemocratic. Each state is awarded two Senators, regardless of the population of that state. Hence, the approximately 600,000 citizens of Wyoming are given the same power and voice in the Senate as the nearly 39 million citizens of California. As a consequence of this grossly disproportionate system of representation, a minority of the national population controls a majority of the Senate. And given the Senate’s requirement of a 60-persons super majority to bring any measure up for a vote, the anti-democratic character of the Senate is even more pronounced.

At first glance, the House of Representatives seems more representative, but the emphasis should be

on the word “more.” Membership in the House is proportioned among the states based on population. So far so good. In this sense, the House is more representative than the Senate. But the current system of congressional districting, under which the districts are re-mapped every 10 years by state legislatures, has led to endemic political gerrymandering that artificially distributes power between the two parties in accord with whichever party happens to be in power in the state at the time of the redistricting. As has often been said, the voters don’t pick their representative. Rather, the representatives pick their voters.

The membership in the House also suffers from the fact that the current method of election—i.e., district-by-district, winner-take-all—artificially enthrones the monochromatic two-party system and virtually eliminates any serious competition from third-party candidates. A proportional system of election—i.e., one that gears a party’s share of representation to its share of support as voiced in the election—is decidedly more democratic and more likely to reflect the true democratic consensus.

The anti-democratic character of Congress is further exacerbated by “bicameralism, ” which requires that both Houses approve any legislation before it becomes a law. Although neither chamber of Congress is truly representative, bicameralism imposes an additional safeguard against democracy by giving the wholly undemocratic Senate a check on any democratic impulse exhibited by the House.

The president, as we know from this most recent election, is certainly not elected democratically. Rather, the president is elected in accord with a system that gives stronger voice to persons living in less populous states—much like the composition of the Senate, but marginally less disproportionate. And even in those cases where a presidential candidate wins both the popular vote and the Electoral College vote, it does not follow that that candidate won a majority of the popular vote. In fact, in 16 presidential elections, no candidate received a majority of the popular vote. So in close presidential contests, victory goes to the candidate who can best game the system or who is simply the luckiest of the pack. Surely, we could survive a democratic system in which the victor of a presidential contest would be required to win a majority of the votes cast. And in those cases where no candidate achieves a majority in the first round, a prompt runoff between the two leading candidates could resolve the contest.

One final point on the president: Along with bicameralism, no legislation can become a law unless “presented” to the president for approval. Thus, the undemocratically elected president has the power to veto legislation that has somehow has survived the gauntlet of the Senate, the House, and bicameralism.

The judiciary is said to be the least democratic branch. The president nominates, and with the approval of the Senate, appoints the justices of the Supreme Court and all lower federal court judges. We often hear critiques of the “unelected” judiciary and of the anti-majoritarian character of judicial review—the power to declare a law unconstitutional. But although the judiciary is surely “unelected,” it is neither more nor less democratic than the decidedly undemocratic institutions that nominate, approve, and appoint the members of the judicial branch. Like all of the undemocratic obstacles listed above, the judiciary and its attendant power of judicial review are simply part of the anti-democratic constitutional arsenal.

Finally, let’s consider the Bill of Rights and those amendments to the Constitution designed to protect individual rights. In one obvious sense, these amendments are also anti-democratic in that they prevent even a true majority from taking action in violation of the protected rights. In a sense, the activities protected by those provisions are sealed from majority (or sub-majority) interference.

In a more important sense, however, the provisions protecting individual rights may be the only truly democratic provisions in the Constitution. Those rights preserve the liberty of the demos and create a platform from which the possibility of democracy might emerge. The platform is built on freedom of speech and press, the right to assemble, the right to vote, and the right to equal protection of the laws. Given the power of judicial review, one might argue that the constitutional mission of judiciary is to not to preserve the Constitution but to preserve the possibility of democracy through the enforcement of those rights. Of course, I’m being idealistic. The democratic values of the current Supreme Court are far from evident. But it would be a delicious irony if the unelected judiciary became the vehicle through which a true democracy could emerge.

Wednesday, November 9, 2016

Yesterday, California voters passed Proposition 66, a measure that is designed to hasten the capital sentencing process. Professor Sean Kennedy, executive director of the Loyola Center for Juvenile law & Policy and former head of the Federal Public Defender's Capital Habeas Unit, foresees problems:

Habeas lawyers are likely to argue that Prop 66 violates due process. For 40 years, the state supreme court decided all the capital habeas petitions to ensure uniformity and fairness in the application of the death penalty in California. Now all bets are off because the individual trial judges will decide those issues, leading to conflicting decisions and inconsistent application of the death penalty throughout the state.

Monday, November 7, 2016

Just days before the presidential election, concerns about Donald Trump’s payment of his tax obligations persist. Recent press coverage has focused on an issue that (at least so far, based on very limited information) probably does not disqualify him to be our president, and has not focused enough on two more fundamental tax issues that disqualify him to be our president.

In the past few days, press coverage has emphasized a technical business tax question: what specific tax strategies did Trump use to generate and preserve $916 million of net operating losses (NOLs), despite massive debt discharge, and were those strategies legally questionable? A front page November 1 New York Times article on this topic asserts that the “stock for debt swap” part of Trump’s overall tax strategy was a new tax “dodge” dreamed up by tax lawyers to avoid debt discharge income (COD) on the cancellation of debt. This characterization of such swaps as a new tax scam is inaccurate. My academic articles on corporate COD explain the long history and theory of the exception and its gradual repeal. Suffice it to say that “stock for debt swaps” in bankruptcy cases were relatively common in the 1980s and early 1990s. Unless there is more to be revealed, Trump’s use of the stock for debt exception to COD does not disqualify him to be president.

But Trump’s conduct regarding two other tax issues does disqualify him to be president.

First, Trump’s continuing failure to disclose his tax returns is a disqualifier. For decades, all other presidential candidates have disclosed their tax returns. As Republican Fred Goldberg (IRS Commissioner under President George H.W. Bush) argues, a candidate who refuses to disclose tax returns has not earned our trust and is not qualified to be our president.

Although Trump claims that he cannot disclose his tax returns because he is being audited, many of Trumps’ tax returns are not under audit. The statute of limitations (SOL) for tax returns is generally three years (or six years if large amounts of income are omitted) from the filing date. This means that the IRS generally has three years to challenge the return and claim that the taxpayer owes additional tax for a specific tax year. In addition, a special rule extends the SOL for years to which NOLs are carried back. Once an audit begins, a taxpayer often consents to extend the SOL, to give the IRS and the taxpayer time to settle the case without a lawsuit. If a taxpayer does not extend the SOL or agree to pay extra tax, the IRS sends the taxpayer a letter that initiates a lawsuit in the US Tax Court. The upshot of this is that Trump’s tax returns for a number of years currently may be in the administrative audit process with the IRS -- but they can’t ALL be in audit. In addition, it is doubtful that the IRS has audited Trump’s most recent income tax return. If, as is likely, his 2015 tax return is not under audit, Trump should disclose it. Also, he should disclose his returns for any earlier years that currently are not under audit.

Second, Fred Goldberg and fellow Republican Michael Graetz (Deputy Assistant Secretary, Tax Policy, under President George H.W. Bush) conclude that Trump likely failed to pay Medicare taxes on salary income he understated. In addition, unless Trump reported all of the salary he was paid for his services as self-employment income, he likely also failed to pay Social Security taxes. (Only disclosure of his self-employment income and other details from his tax returns could refute that conclusion.) Even minimum wage workers pay Social Security and Medicare taxes. Trump’s conduct shows that he shares the view expressed by another famous New York City business tycoon, Leona Helmsley: “only the little people pay taxes.” His avoidance of payroll taxes is an insult to law-abiding, taxpaying Americans and disqualifies him from being our president.

Thursday, November 3, 2016

The overall goal of our Constitution is to promote the general welfare of the people through a system of ordered liberty. Over the past two centuries, this constitutional structure has functioned reasonably well, though not without serious challenges, including a bloody civil war. It is a system designed for public-spirited problem solvers. And it seems clear that if the people’s representatives want to accomplish something, our constitutional system will allow them to do so. Of course, that will require thoughtfulness, negotiation, and compromise.

There is, however, nothing mystical or metaphysical about our Constitution. It is not perfect and no reorganization of it or amendment to it will ever make it so. When drafted and ratified it represented best ideas on governance that could survive the necessary political compromises of that day. Some of its imperfections have been repaired, such as the abolishment of slavery, but others remain, including our grossly malapportioned Senate. Its success and longevity is the product of the public servants who make it work.